Document Type

Article

Publication Title

Columbia Law Review

Volume

81

Publication Date

1981

Keywords

Assistance of counsel, indigent litigant, uncompensated legal assistance, gratuitous legal services

Abstract

Whether an individual becomes a party to judicial proceeding involuntarily, as a criminal or civil defendant, or voluntarily, as a civil plaintiff seeking redress of an injury, the assistance of counsel will increase his chances for a favorable disposition. When an impecunious litigant is unable to retain counsel, the question arises of who must bear the burden created by the complexity of adjudication. Although the Supreme Court has been sympathetic to the need for counsel in criminal cases, an indigent litigant in civil cases often will be denied legal assistance, and therefore will bear the burden himself In other instances, the public will assume this burden by procuring and compensating attorneys or public defenders to represent litigants who cannot afford counsel. Finally, members of the legal profession themselves may be required to carry this burden by representing the poor without compensation upon court appointment. The alternative that places the cost of representing impecunious litigants upon individual attorneys, rather than upon the public or upon the litigants themselves, might at first glance seem the least equitable. Such a system runs contrary to general expectations that professionals be compensated for their services. However, American courts have long exercised the authority, at least in criminal cases, to compel attorneys to donate their services. Recent constitutional challenges to this practice generally have been rejected, based either upon the broad licensing authority of the states or upon the unique relationship of attorneys to the courts. This Note considers the constitutionality of requiring attorneys to provide uncompensated legal assistance. While the discussion centers upon court appointment of attorneys in civil cases, the analysis is also applicable to criminal cases. First, the Note outlines the demand for legal assistance to the poor and the types of constitutional challenges usually raised to compelled representation. The Note then examines the power of courts to compel attorneys to provide gratuitous legal services, analyzing the traditional justifications advanced by courts to shield compelled representation from constitutional scrutiny. Finding these justifications unpersuasive, the Note proceeds to examine the constitutional challenges to court appointment of attorneys, concluding that there is no constitutional bar to compelling attorneys to render uncompensated legal assistance to poor litigants in civil cases.

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